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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

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Friday, July 31, 2015

Ancel Glink is pleased to announce that two of our partners have been honored by the International Municipal Lawyers Association (IMLA).

Ancel Glink equity partner Stewart Diamond was recently selected by IMLA as the recipient of the Marvin J. Glink Private Practice Local Government Attorney Award. This award honors the memory of Marvin Glink (a founding member of Ancel Glink) to recognize excellence in the practice of law, outstanding service to the public, the highest of ethical standards, and the professional development of newer practitioners.

Ancel Glink partner Steve
Mahrt was recently selected by IMLA as the recipient of the Jim Epps Award. This award recognizes local government
attorneys who have served the same community for at least 30 years and been
active in IMLA during that time. Before joining Ancel Glink to head up our
Central Illinois office, Steve served as corporation counsel for the Town of
Normal for more than 30 years.

Congratulations to both Stewart and Steve for these well-deserved honors!

Last Friday, a Cook County Circuit Court judge dealt a major
blow to the State’s pension reform efforts. Judge Rita M. Novak declared recent
pension reform legislation unconstitutional, likely putting the final nail in
the coffin of the State’s most recent efforts to solve its pension crisis. This
decision comes on the heels of a major ruling by the Illinois Supreme Court
invalidating another piece of pension reform legislation. As a result of these
rulings, many pension funds now find themselves on the brink of insolvency,
with some projected to go broke within a decade.

In the case decided Friday, the court considered the constitutionality of Public
Act 98-641. That legislation amended the way that two pension funds were
financed. The funds, the Municipal Employees Annuity and Benefit Fund and the
Laborers Annuity and Benefit Fund of Chicago, provide pensions to employees of
the City of Chicago. Currently, those funds provide for annual pension payment
increases of three percent. The legislation decreased the amount of these
annual increases. It also required both employers and employees to increase
their pension contributions.

Members of these pension funds argued that this legislation
was unconstitutional because it violated the Pension Protection Clause of the
Illinois Constitution. The Pension Protection Clause states that pension
benefits cannot be “diminished or impaired.” In its decision last May, the
Illinois Supreme Court held that this prohibited the General Assembly from
enacting legislation that eliminated annual increases to pension benefits and
capped the amount of pension benefits that a pensioner could receive. Since
this legislation, the Court held, would diminish the benefits that pensioners
had been promised, it was in violation of the Pension Protection Clause.

Similarly, in the case decided on Friday, Judge Novak held
that Public Act 98-641 was unconstitutional because it too diminished the
amount of pension benefits a pensioner could receive through its elimination of
annual increases to pension benefits. She rejected the pension funds’ argument
that this legislation actually provided a net benefit to the pension fund
members, as it required the City of Chicago, for the first time, to make
pension contributions. Judge Novak held that this benefit could be taken away
at any time, and therefore would not provide the type of permanent guarantee
that pension benefits would not be diminished that the Pension Protection
Clause guaranteed.

So, what are the consequences of this decision? In the short
run, we can expect an appeal. The chances of this appeal succeeding seem slim,
however. Judge Novak’s reasoning in Jones tracked the Supreme Court’s May
decision closely. She noted that the facts in Jones were similar to those in
the case considered by the Supreme Court, and therefore warranted a similar
outcome. Based on the similarities in the facts in Jones to the case considered
by the Supreme Court, it seems unlikely that Judge Novak’s decision will be
overturned.

In the long run, this decision shows that decreasing the
benefits that pensioners receive will be almost impossible. The court made it
clear that the Illinois Constitution prevents the General Assembly from
decreasing pension benefits in almost any circumstance. Creative legal
arguments on the part of the pension funds were not enough to change this. This
almost certainly means that pension shortfalls will have to be made up by
employers. Local governments should prepare themselves for increased pension
contributions in the coming years.

If there is one lesson to be learned from this case, it is
that once pension benefits are promised, they are almost impossible to take
away. This has resulted in huge financial problems for many local governments,
with the City of Chicago being the most prominent example.

Wednesday, July 29, 2015

Stars Caberet is a nude dancing
establishment in Neenah, Wisconsin. When Stars opened in 2006, the County had a
zoning ordinance that restricted the location of adult businesses to certain
zoning districts and required a conditional use for their operation. In Stars'
first lawsuit against the County, it challenged the constitutionality of the
2006 ordinance. During the pending lawsuit, the County amended the ordinance
and Stars' dismissed its lawsuit. However, Stars brought a second lawsuit to
challenge the 2007 amendment, and the court enjoined the County from enforcing
the conditional use requirement, but upheld the remainder of the ordinance
based on the ordinance's severability provision.

Following the decision in the second
lawsuit, the County informed Stars that it could not continue its operations
because the business was never legal. Stars subsequently filed a third lawsuit
asking the judge to declare its operation lawful under federal law or, in the
alternative, a legal nonconforming use under state law. The district court
ruled against Stars, finding that notwithstanding the ordinance's illegality,
the business as unlawful when it opened in 2006.

On
appeal, the Seventh Circuit noted that the County's ordinancewasan illegal prior restraint on
expressive speech in violation of the First Amendment. However, the Court
noted that the ordinance included a severability provision, which could allow a
court to sever the unlawful provisions of the ordinance from the remainder of
the ordinance. Therefore, the Seventh Circuit held that the district court
should have dismissed the state law claims because the application of the
severance provision is a question of state law, especially where local land use
matters are often resolved in state court, absent an overriding federal-law
question. Accordingly, the Seventh Circuit dismissed the state law claims, so
that the parties may (if they wish) pursue them in state court. Green
Valley Investments, LLC v. Winnebago County (7th Cir. July 27, 2015)

Tuesday, July 28, 2015

Webcast— Housing and Takings: A Look at the U.S. Supreme
Court's Inclusive Communities Project and Horne Decisions

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Housing and Takings: A Look at the U.S. Supreme Court's Inclusive Communities Project and Horne Decisions. Date/time below:

Aug 4, 2015, Tuesday

1:00 – 2:30 pm Eastern Time (noon to 1:30 pm Central Time)

In June, the U.S. Supreme Court decided two cases which are
likely to have significance for planners. In Texas Department of Housing and
Community Affairs v. Inclusive Communities Project, Inc., the Court upheld the
use of disparate impact analysis in Fair Housing Act claims. Among other
groups, local governments will continue to have potential disparate impact
liability, particularly now that the federal Department of Housing and Urban
Development has finalized a rule requiring increased scrutiny of zoning and
other local regulatory practices as a condition of local governments' receipt
of funds through HUD grant programs. In Horne v. Department of Agriculture, the
Court found that a raisin producer was entitled to compensation for a taking of
property where the federal government fined the raisin producer for failing to
turn over raisins as required by a price control law. The Court held that the
forced turnover of raisins could be considered a physical invasion of property.
The Horne decision represents an expansion of takings law, and it could have a
ripple effect on other government regulatory programs requiring the turnover of
private property as a condition of market participation. The webinar will cover
both cases, including a description of each case's background and holding, the
likely consequences for practicing planners.

Monday, July 27, 2015

The budget crisis in Illinois has garnered quite a bit of attention in the press lately. One of the most recent issues involves the question whether the state can pay its employees even though no budget has been approved. This issue has pitted the Democratic-controlled General Assembly and Attorney General's office (who say no) against the Republican Governor (who says yes), with the unions siding with the Governor in this dispute. Multiple lawsuits have been filed by the unions to force the state to pay their members, with different results in Cook County (court sided against the unions) and St. Clair County (court sided with the unions).

On Friday, in an unreported decision, the Fifth District Appellate Court issued a ruling in the St. Clair appeal, finding that the trial court had jurisdiction to grant the unions request for a TRO to compel the state to pay state employees. AFSCME v. State of Illinois, 2015 IL App (5th) 150277-U.

In its opinion, the court goes into some detail about the background that led to this dispute. The legislature and Governor have failed to agree to a budget and, as a result, no appropriations bill exists that would allow the state to pay its bills, including salaries to state employees. Several unions filed suit, including the lawsuit in St. Clair County that is the subject of this appeal, requesting the court to order the state to pay union members. The state comptroller stated that she would not issue paychecks unless ordered by the court, which the trial court did in entering a temporary restraining order directing her to pay all state employees at their regular rate.

The Attorney General had argued at the trial court level that the state has no authority to issue checks for state employee salaries absent an appropriations bill. The AG acknowledged that under federal law (the FLSA), the state would be obligated to pay state employees at least a minimum wage if those employees were ordered to work.

In Cook County, the trial court agreed with the AG, and ordered that the state could not issue paychecks beyond the minimum requirements of the FLSA.

However, in St. Clair County, the trial court ruled against the AG, and ordered the state to pay all state employees (not just union workers) their regular salaries.

In the latter case, the AG appealed on several bases. The AG argued first that the trial court had no jurisdiction to enter the TRO. The appellate court rejected that argument. The AG also argued that the St. Clair decision conflicts with the Cook County ruling. Again, the appellate court disagreed with the AG, finding that the two cases did not raise the same arguments and that the First District Appellate Court had vacated the Cook County circuit court's ruling. Finally, the appellate court held that the unions satisfied the elements for a TRO, and upheld the order that state workers be paid. The appellate court did, however, note that a TRO is intended to be of limited duration, so the court remanded the case back to the circuit court to set a hearing date.

Who: All local
governmental officials, managers, administrators or directors

What: The regulations of the Fair Labor Standards Act
defining exempt status are undergoing drastic changes. The Department of Labor
anticipates that the new regulations will result in the reclassification of
most currently exempt employees to non-exempt status.

In our no-cost "breakfast briefing," the labor and
employment attorneys from Ancel Glink, a premiere Illinois local government law
firm, will explain the new regulations and how to apply them to your employees
so that you stay in compliance with state and federal wage laws. We will
discuss topics such as:

What is the
new salary test for exempt status?

What do I
do with my exempt employees who will not meet the new salary threshold?

What is the
duties test for white collar exemptions and how will changes affect the status
of my currently exempt staff?

What do I
have to do to comply with new record keeping requirements for exempt employees?

What is the
best way for an employer to implement these new changes in the law?

Wage claims can be costly to resolve. This breakfast
briefing is free. Let us prepare you to accurately determine whether your
exempt employees will remain exempt under the new FLSA regulations.

How: Seating is
limited. Reserve your spot at the breakfast briefing now by emailing us here.

Thursday, July 23, 2015

Allegations of political wrongdoing can come from all levels of government: federal, state, and local. Some of them can even land an official in jail, which is what happened to Illinois' former Governor Rod Blagojevich a few years ago.

The former Governor became famous (infamous?) for his hair, his wife's stint on a reality show, his difficult-to-pronounce name, and more importantly, allegations that he tried to trade his appointment power over President Obama's vacated senate seat. The latter landed him in prison, convicted of 18 crimes, including attempted extortion, solicitation of funds, wire fraud, and lying to federal investigators. He was sentenced to 168 months imprisonment, and he appealed to the Seventh Circuit Court of Appeals.

On Monday, the Seventh Circuit issued an opinion on his appeal, and reversed 5 of his convictions and vacated his sentence. USA v. Blagojevich. Specially, the appellate court found that the jury instructions on the count relating to Blagojevich's proposal to appoint Valerie Jarrett to the Senate in exchange for an appointment to the Cabinet were improper because the instructions did not distinguish between a proposal to trade one public act for another (a form of logrolling, which is not illegal) and a swap of an official act for private payment (which is illegal). Because it was not clear that the jury would understand the difference between the illegal and legal actions, the court reversed the five counts related to this jury instruction.

The court rejected Blagojevich argument that his 168 month sentence was too long, noting that the recommended range for sentencing was 360 months to life imprisonment.

Based on the reversal of five of his convictions, this case will now go back to the district court for resentencing. The federal government could choose to retry him on the five counts, but that may not be very likely given that his sentence of 168 months is still within the sentencing range, even removing these 5 convictions.

Wednesday, July 22, 2015

We haven't heard much from the Public Access Counselor (PAC) this year, at least not in the form of binding opinions (there have been only 4 of those in all of 2015). As reported previously, most of the PAC's opinions come in the form of advisory, or non-binding opinions. These opinions are not, unfortunately, available on the Illinois Attorney General's website, so we only hear about these if they are reported on by the local press or if one of our clients receives one. I thought one of these non-binding opinions might be interesting to report on today, because the opinion points out that the PAC's jurisdiction to review and issue an opinion on a request for review is limited to its express authority under the Freedom of Information Act and Open Meetings Act.

In 2015 PAC 36225, the former village president filed a request for review to challenge a village board's override of a veto she delivered to the board while still serving in office. She claimed that the board's action to override her veto violated Section 3.1-40-45 of the Illinois Municipal Code because the action was taken at a rescheduled regular meeting (which she termed a special meeting) rather than at a regular meeting.

The PAC first noted that it does not have authority to review whether a board's actions comply with the Illinois Municipal Code. The PAC stated that its authority is limited to resolving disputes concerning FOIA and the OMA. Because the allegations in the complaint did not provide a summary of facts supporting any allegation that the board violated the OMA, the PAC dismissed the request for review.

Post Authored by Julie Tappendorf

Disclaimer: Ancel Glink represents the municipality that was the subject of the complaint.

Tuesday, July 21, 2015

In a recent appellate court decision in Washington state, a court denied a lawyer's request that Avvo (an online attorney rating site) disclose the identity of an anonymous poster who wrote a negative review of the lawyer. Thompson v. Jane Doe (Ct. App. Wash. 2015)

The review stated as follows:

I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.

The attorney claimed that the post was designed to impugn her personal and professional reputation, and that she needed the poster's identity in order to proceed with a defamation action. Avvo.com refused to release the identity of the poster, so she filed a lawsuit to compel the release.

The court reviewed a variety of cases where courts had considered similar requests to divulge the identity of anonymous posters. The court noted that these courts had applied a variety of different standards in determining whether a person was entitled to learn the identity of an anonymous poster. For example, in Virginia, a defamation plaintiff seeking an anonymous speaker's identity must establish a good faith basis to contend that the speaker committed defamation. Other courts applied a "motion to dismiss" standard - in other words, the plaintiff had to demonstrate that his or her defamation claims would survive a motion to dismiss.

The Washington court rejected both standards, however, in favor of a standard that requires the plaintiff to provide supporting evidence beyond the pleading standards before an anonymous speaker's identity is released. Applying this more stringent standard, the court held that Thompson was not entitled to disclosure of the Avvo.com poster's identity.

Friday, July 17, 2015

A very astute reader pointed out that the General Assembly passed an immediate amendment to Public Act 99-46 (Public Act 99-47) removing the local government authority to grant exceptions to church/school locational restrictions. So, I'm reposting this story - thank you Mark Palmer! For an even more in depth analysis of the happy hour law, visit Mark's blog at: Travelblawg. It's Friday, so what could be more appropriate than a "happy hour" blog post?

In an earlier post from June 4, 2015, we presented a summary of the changes to the Liquor Control Act that relaxed the prohibition against happy hours. Now that Public Act 99-46 (and its companion amendment 99-47) has become law and we have had more time to pour over the amendments, we can explain the other, less publicized, changes the General Assembly has made.

1) Hotels: The State will begin issuing a single liquor license for all premises from which a hotel sells alcoholic beverages (e.g. lounges, restaurants, room service, mini-bars) so long as they are all under common ownership. Formerly, a separate state license was required for each place alcohol was available. Local governments are not required to operate the same way, but you should expect the local hotels to ask. This would reduce your local licensing revenue by eliminating a number of licenses.

2) Sales near Churches/Schools: The State has granted local governments the ability to exercise control over whether this prohibition should apply on a case-by-case basis. UPDATED: This portion of the new law was immediately stricken by a subsequent law (Public Act 99-47).

3) Infusions: Bars may now sell homemade alcoholic beverages created by “infusing” natural flavors into spirits. For example, a bar could open and mix several bottles of vodka with fruit, age it for up to 14 days, and sell it by the glass for up to 21 days. While the ingredients need to be labeled, the proof does not need to be identified. Talk about happy hour!

4) Basset Training: In all the collar counties, all servers are now required to obtain a Basset training certificate by July 1, 2016, or within 120 days of the first day of work, whichever is later. Smaller counties (pop. < 200,000) have until 2017. A Basset training certificate is transferable with the employee between restaurants, but cannot be transferred between employees.

Each local government should be familiar with these amendments and decide whether it wishes to modify its local liquor control ordinances in response.

Thursday, July 16, 2015

Earlier this month, Governor Rauner signed P.A.
99-0006, which amended certain provisions of state law regarding
telecommunications, cable operators, and 9-1-1centers, as follows:

The
law extends funding for 9-1-1 centers through July 1, 2017. Currently,
the Wireless Emergency Telephone Safety Act was scheduled to be repealed
on July 1, 2015, but with this extension, 9-1-1 centers will
continue to receive funding from the state.

The
law creates and implements a uniform statewide 9-1-1 system (except for
Chicago) that, effective January 1, 2016, will be administered by the
Office of the 9-1-1 Administrator within the Department of State
Police. Until January 1, 2016, administration of emergency
telephone systems and distribution of wireless surcharge funds will remain
with the Illinois Commerce Commission, and a new Statewide 9-1-1 Advisory
Board is created to assist with the transition to a statewide 9-1-1
system.

Effective
July 1, 2015, the law establishes a statewide monthly surcharge of $0.87
per network connection that applies to both landline and wireless
connections and that will be distributed, in part to local 9-1-1
authorities, by the Department of State Police according to a formula set
by the statute. Prior to July 1, 2015, a statewide surcharge
was collected from wireless carriers by the ICC and distributed to local
9-1-1 authorities, while landline charges (and wireless charges set prior
to July 1, 1998) at rates set by local jurisdictions were paid directly to
local authorities by telephone service carriers. Local
authorities will be permitted to collect locally-imposed surcharges
through 2015, but, under the new law, local governments (with certain
grandfathered exceptions and except for Chicago) will no longer be able to
impose these surcharges after January 1, 2016.

A
portion of the statewide monthly surcharge will be allocated to the
creation, by the 9-1-1 Administrator with the advice of the Statewide
9-1-1 Advisory Board, of a statewide Next Generation 9-1-1 network.

After
January 1, 2016, no municipality or county may create an emergency
telephone system board unless it is a joint emergency telephone system
board created by intergovernmental agreement.

By
July 1, 2017, a county with no 9-1-1 service (currently, there are nine
such counties in Illinois) must provide such service by entering into an
intergovernmental agreement with an existing joint emergency telephone
system board or for the purpose of creating a new joint emergency
telephone system board.

By
July 1, 2017, consolidation of existing public safety answering points
(PSAPs) must take place. Consolidation depends on the
population of the affected county and the number of PSAPs in the
county. For example, the statute provides that, in a county
with a population of at least 250,000 but less than 1,000,000 (a
definition that includes all of the Chicago-area collar counties – DuPage,
Lake, McHenry, Kane, and Will) and that has more than one emergency
telephone system board, joint emergency telephone system board, or
qualified governmental entity, the number of PSAPs in the county must be
reduced by 50% or 2 PSAPs, whichever is greater, by July 1, 2017. The
statute also provides that any 9-1-1 authority serving a population of
25,000 must be consolidated into a new or existing joint emergency
telephone system.

To aid
in the consolidation process, a consolidation grant program is
established.

In
another part of the statute, the law limits the time period for a
municipality to complete an initial finding of an audit on a cable
television (CATV) operator to 90 days after the information is given to
the municipality or third party. The time limit may be extended for an
additional 90 days. A CATV operator will not be liable for any past
service fees that were unknown to the CATV operator. The law
provides that any contract between a municipality and a third party audit
firm is subject to the Freedom of Information Act.

Wednesday, July 15, 2015

A group called Southern Illinoisans Against
Fracturing Our Environment (SAFE), along with the owners of property in various counties in Illinois, sued the Department of Natural Resources to seek an injunction against DNR's adoption of rules under the Hydraulic Fracturing Regulatory Act. The plaintiffs claimed that DNR failed to follow the statutory rulemaking procedures by:

failing to include a summary of the proposed rules on the agenda;

failing to give sufficient notice of the public hearings on the proposed rules;

failing to respond to questions about the rules;

denying some people the right to speak during the hearings by establishing a predetermined 2 hour period for the hearings;

failing to disclose studies, reports, and other data used to draft the proposed rules;

providing false statements in the first notice when it indicated that the proposed rules did not affect units of local government;

not publishing the hearing transcripts in a timely manner;

failing to submit a report to the General Assembly as required by the Act.

The plaintiffs argued that these failures deprived plaintiffs of their rights under the Administrative Procedure Act, and filed a motion for preliminary for injunctive relief to prohibit the state from publishing the rules and enforcing them. The state objected to the motion, arguing that the plaintiffs did not show they could succeed on the merits of their claim that the state's rulemaking process violated state law. The trial court agreed with the state, and denied the plaintiffs' request for an injunction. The plaintiffs appealed.

The appellate court also denied the plaintiffs' request for an injunction to stop enforcement of the new rules, finding that the plaintiffs failed to show they would suffer irreparable harm, one of the necessary elements to obtain an injunction. Specifically, the court held that the plaintiffs' claims are too speculative to justify "the extraordinary relief afforded by the issuance of a preliminary injunction." Smith v. Department of Natural Resources, 2015 IL App (5th) 140583

Tuesday, July 14, 2015

Wheaton College, a liberal arts college in Illinois, brought suit against the federal government alleging that the Affordable Care Act infringed on the college's religious rights by making it complicit in providing emergency-contraceptive coverage to its employees and students. Although not affiliated with any church, the college describes itself as "deeply committed to evangelical Protestantism."

The college's case made its way to the Seventh Circuit Court of Appeals, which rejected its argument that its religious rights were violated by the ACA. First, the court acknowledged that the AC does require college health insurance plans to cover the 20 types of FDA-approved contraceptives. However, the ACA also allows a college to refuse to include in its health plans any drugs of which it disapproves on sincere religious grounds, so long as it notifies its health insurers of its unwillingness to provide coverage. Upon notification, the insurers are required to provide coverage directly to the students, faculty, and staff, bypassing the college and its health plans. As a result, the court rejected the college's argument that it was "forced" to allow use of its health plans to cover emergency contraceptives, finding that the college was only "forced" to notify its insurers that the college's health plan would not cover it. The court also rejected the college's argument that its First Amendment rights were violated by compelling its speech (i.e., providing the notice). In conclusion, the court denied the college's request for injunctive relief. Wheaton College v. Burwell, Secretary of Health and Human Services (7th Cir. July 1, 2015).

Monday, July 13, 2015

Five residents of buildings in Chicago who received housing vouchers sued the Chicago Housing Authority, claiming that the CHA violated their constitutional rights because building owners required annual drug tests for occupancy. The district court denied injunctive relief to the residents, finding that the drug testing policies were the actions of private actors (i..e, the building landlords) , and not a state (CHA) policy. The Seventh Circuit Court of Appeals agreed, finding that the CHA had no policy mandating drug testing at mixed-income developments like those where plaintiffs resided. The court further rejected plaintiffs' argument that the CHA encouraged or urged building landlords to enact drug policies, finding that "a lot of urging" by the government does not translate into the force of law. Peery v. Chicago Housing Authority (7th Cir. July 1, 2015).

Friday, July 10, 2015

The American Bar Association's Section of State and Local
Government is sponsoring this year's Land Use Institute. The program not only addresses and analyzes the state-of-the-art efforts by government to manage land use and development, but also presents the key issues faced by property owners and developers in obtaining necessary governmental approvals.

I'm excited to report
that the Land Use Institute is in Chicago this summer (what better time to
visit Chicago?). Here are the details:

Thursday,
July 30, 2015

Land
Use Institute Program, ABA Annual Meeting

Westin
Chicago, River North, Chicago, Illinois

8:45-10:00am
Update on Planning, Land Use and Eminent Domain Decisions

10:30-11:30am
Federal Laws, Regulations, and Programs Affectings Local Land Use Decision
Making

Thursday, July 9, 2015

School bullying has received greater attention in recent years, and many states have responded by enacting anti-bullying laws that require schools to take preventative measures, including training and anti-bullying policies. However, relying solely on these statutory measures may not be enough to protect schools from liability in the event a student alleges he or she has been bullied.

Ancel Glink partner Darcy Proctor co-authored a recently published article titled "Big Bully: School Liability for Bullying" where she discusses the most frequent type of lawsuits brought against schools, and identifies certain steps or "best practices" schools should consider to protect itself from liability. You can read the article here: Big Bully: School Liability for Bullying.

Wednesday, July 8, 2015

Tipton, the owner of property in unincorporated Madison County zoned for agricultural use, built a pole barn on his property. He obtained a permit to construct the barn, but the County issued a stop work order when it learned that he was using the barn to store equipment for his off-site concrete construction business and not farm equipment. He then applied for a rezoning of his property to a business district, but the rezoning was denied. Tipton then sued the County, asking the court to reverse the zoning denial or declare that his proposed use of the barn for construction equipment was lawful. The circuit court ruled in favor of the county, and Tipton appealed.

The appellate court rejected Tipton's argument that the equipment he sought to store on the property was "substantially identical" to the equipment found on a farm, finding that the uses were not the same since Tipton would be hauling heavy equipment to and from work sites. In addition, the area surrounding Tipton's property was trending towards residential development, giving additional support to the county's denial of the use and rezoning. Tipton v. Madison County, 2015 IL App (5th) 140186.

Tuesday, July 7, 2015

The Planning and Law Division of the American Planning Association will be presenting a webcast called A Sign Regulation Apocalypse?Understanding the U.S. Supreme Court’s Decision InReed v. Town of Gilbert on July 21st. You may recall that the Supreme Court recently struck down Gilbert, Arizona's temporary sign regulations as unconstitutional. This case could have wide-ranging impact on municipal sign regulations, so this webcast should be of interest to government officials and employees.

Here are the details from the APA:

Webcast— A Sign
Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision
In Reed v. Town of Gilbert

July 21, 2015

1:00 – 2:30 PM Eastern (12:00 to 1:30 PM Central)

On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert,
Arizona’s sign code. In a rare unanimous decision, all of the justices of
the Court agreed that the Town’s code violated the core First Amendment
requirement of content neutrality, and the majority opinion provided new
insight on what it means for a regulation to be “content neutral.” The
Court’s decision is expected to put thousands of sign codes at increased risk of
legal challenges, which could mean increased legal costs for local governments,
as well as potential negative impacts on communities’ aesthetic concerns.
This program will include presentations by some of the nation’s leading
scholars and practitioners on First Amendment and land use issues.
Panelists will discuss the facts of the Reed case, the Court’s
rationale for its decision, some of the important questions and unanswered
issues stemming from the case, and some helpful practice pointers on sign code
drafting and enforcement.

Oklahoma's Supreme
Court has ruled that a Ten Commandments monument on the Oklahoma Capitol
grounds is unconstitutional under state law. The lower court had
ruled that the six-foot monument did not violate the state constitution because
of its historical value. Last week, however, the Oklahoma Supreme Court
reversed that ruling in Prescott v. Oklahoma Capital Preservation Commission, and ordered that the monument be removed.

The Oklahoma Supreme
Court rejected the Preservation Commission’s reliance on Van Orden v. Perry, 545 U.S. 677 (2005), a
case involving the U.S. Constitution’s Establishment Clause. The Oklahoma
court noted that “the issue in the case at hand is whether the Oklahoma Ten
Commandments monument violates the Oklahoma Constitution, not whether
it violates the Establishment Clause.” (emphasis in original). Article
2, Section 5 of the Oklahoma Constitution states:

No public money or
property shall ever be appropriated, applied, donated, or used, directly or
indirectly, for the use, benefit or support of any sect, church, denomination,
or system of religion, or for the use, benefit, or support of any priest,
preacher, minister, or other religious teacher or dignitary, or sectarian
institution as such.

The Court focused on
the use of the word “indirectly” in the state constitution to find the broad
and expansive prohibition against using public property to promote religion.

In light of this decision, local
governments may want to carefully review state
constitutions – in addition to federal law – before permitting state or
municipal religious displays on public property.

Thursday, July 2, 2015

A Maywood ordinance requires Village employees, including police officers to reside in the Village or within 15 miles of the Village's corporate boundaries. The Village filed disciplinary charges against a police officer when it learned that the officer lived in St. Charles, about 30 miles from the Village. At his disciplinary hearing, the officer testified that he had multiple residences, including a condominium in Chicago (within the 15 mile requirement) and the St. Charles home. He testified that the condominium was owned by his brother, and he paid $450 each month to rent a room and closet. However, he admitted that had no lease, rental agreement, or cancelled checks to prove that he actually resided in the condominium. He also admitted that his wife and children live in the St. Charles home, and that the family is intact. At the end of the hearing, the board voted to terminate his employment, and he appealed to the circuit court.

The circuit court upheld the board's findings that the officer violated the residency requirement but vacated the board's termination, and remanded the case back to the board to impose a lesser penalty. On appeal, the appellate court reviewed the Village's residency ordinance and analyzed various cases establishing standards for "residency."

First, the appellate court determined that the board was correct in determining that the officer violated the Village's residency requirement. The evidence produced during the hearing established that his actual residence was in St. Charles, and not in Chicago as the officer argued.

Second, the appellate court rejected the circuit court's decision to overturn the officer's termination. The court found that the officer had engaged in an ongoing violation of the residency ordinance for two years, and had been untruthful to the Village regarding his residency. In short, the court held that the board's decision to terminate was not unreasonable. Wheeler v. Board of Fire and Police Commissioners of Maywood, 2015 IL App (1st) 140453-U

Last week Brookfield Zoo, operated by the Chicago Zoological Society, discharged a worker for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. She made matters worse for herself because the photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. The Zoo has a social media policy which prohibits its employees from discrimination and harassment, including on social media.

So, in a time where the trend is clearly to protect the speech of employees, including social media comments, what makes this employer think that this discharge will stick? Consider the following:

The former employee was not criticizing either fellow workers or members of management. The NLRB has lately gone out of its way to find even offensive language by employees to be protected if it is about the workplace and/or management related to their duties in the workplace.

The former employee did not make the comments in the context of protected concerted activity. This factual pattern differs markedly from the Cooper Tire case on which we reported last week where picketers yelled racially charged insults at temporary replacement workers. In the Cooper Tire case, the NLRB found the offensive language to be protected as part of the concerted action of picketing and that the language, while clearly offensive, was not threatening. The Brookfield Zoo employee just made a racially offensive remark.

The former Zoo employee not only identified herself as an employee of the Zoo by wearing her uniform in the picture accompanying the remark, but tagged the location of her remark as the Brookfield Zoo. Had she made her remark without reference to her employment, she would probably still be employed there. As it was, her selfie in Zoo uniform with the comment clearly associated the remark to her employment and the location tag made it appear that she made the remark while at work.

A strong Zoo policy prohibiting harassment and discrimination, including on social media, exists. The employer could find both that the ex-employee knew of the prohibited behavior and violated the policy.

While employers may rightfully feel a bit gun-shy about taking adverse action against employees who make inappropriate or downright offensive statements in or about their workplace, offensive or discriminatory comments about customers are rarely protected by law. A clear policy prohibiting such behavior by employees as it relates to their employment, will generally allow the employer to take appropriate action.